Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 66M

Application of this section to disputes about employee choice

  (1)   This section applies to a dispute between an employer and an employee about the operation of Subdivision B of this Division.

Resolving disputes

  (4)   In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.

Note 1:   Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph   146(b) and subsection   186(6)).

Note 2:   Subsection   55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section   55 (see section   56).

FWC may deal with disputes

  (5)   If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.

  (6)   If a dispute is referred under subsection   (5):

  (a)   the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and

  (b)   the FWC may deal with the dispute by arbitration in accordance with section   66MA.

Note:   For the purposes of paragraph   (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection   595(2)).

Representatives

  (10)   The employer or employee may appoint a person, or an employer organisation or employee organisation, that is entitled to represent the industrial interests of the employer or employee to provide the employer or employee (as the case may be) with support or representation for the purposes of:

  (a)   resolving the dispute; or

  (b)   the FWC dealing with the dispute.

Note:   A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section   596).

Procedural rules

  (11)   Without limiting section   609, the procedural rules may provide, in relation to a dispute between an employer and employee that has been referred to the FWC under subsection   (5) of this section, for the joinder of the following as parties to the dispute:

  (a)   any other employee that has a dispute to which this section applies with the same employer;

  (b)   any employee organisation that is entitled to represent the industrial interests of such an employee.